People ex rel. Sammarco v. Le Fevre

• Decision Date: 16 August 1974
• Citation: 358 N.Y.S.2d 905,78 Misc.2d 882
• Parties: The PEOPLE of the State of New York ex rel. Louis SAMMARCO, Relator, v. Eugene S. Le FEVRE, Superintendent, Adirondack Correctional Treatment and Evaluation Center, Dannemora, New York, Respondent.
• Court: New York Supreme Court

Page 905

358 N.Y.S.2d 905

78 Misc.2d 882

The PEOPLE of the State of New York ex rel. Louis SAMMARCO, Relator, v. Eugene S. Le FEVRE, Superintendent, Adirondack Correctional

Treatment and Evaluation Center, Dannemora, New

York, Respondent.

Supreme Court, Clinton County.

Aug. 16, 1974.

Louis J. Lefkowitz, Atty. Gen. (Charles H. Lewis, Plattsburgh, of counsel), for respondent

Louis Sammarco pro se.

DECISION

GOLDMAN, IRVING, Justice.

Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, established minimum requirements to meet the test of 'due process' in parole revocation proceedings for state prisoners. Among these is the right to confront and cross examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation.)

In August 1971, petitioner Sammarco was paroled from Clinton Correctional Facility and permitted to leave New York to join his family and seek employment in Florida. He had served some 13 years of a 20 year to life sentence for murder, second degree. In May 1973, he was returned to New York for alleged violation of his parole condition in Florida following a 'preliminary' hearing in January 1973 in Florida. On August 1, 1973, his parole was revoked after a 'full' hearing at Ossining Correctional Facility. By using habeas corpus procedure, the petitioner properly challenges the validity of his parole revocation contending that he was denied 'due process' at both the preliminary hearing and trial hearing stages of the revocation proceedings. People ex rel. Menechino v. Warden, 27 N.Y.2d 376, 318 N.Y.S.2d 449, 267 N.E.2d 238; People ex rel. Maggio v. Casscles, 28 N.Y.2d 415, 322 N.Y.S.2d 668, 271 N.E.2d 517; People ex rel. Silbert v. Cohen, 29 N.Y.2d 12, 323 N.Y.S.2d 422, 271 N.E.2d 908.

Counsel was assigned to represent Sammarco at his revocation hearing in Ossining. The hearing minutes reflect that Commissioner Jones addressed assigned counsel with these remarks:

'Now, Judge Levine, we admit this copy of the violation reports in evidence and this is an interstate compact supervision case and as a result it Is not possible for us to have supervising parole officers from Florida to come up here, so we have to accept the report itself as our evidence.' (emphasis supplied)

The court has reviewed the violations report prepared by the Florida Interstate Compact parole officers and used by the hearing board in making its determination. From the material it contains, their decision in revoking Sammarco's parole can hardly be gainsaid. Nonetheless, assigned counsel's response to Commissioner Hirsch's reference to the board's reliance on the report '. . . (that) we are not able to crossexamine a document . . .' is telling.

The principal charge against the petitioner to which all the others are satellite, is his alleged threat upon the life of his girl friend. Should this be without substance, other charges alleging the purchase of a machete without prior permission (presumably to carry out the threat), her harassment, his disobedience of the order not to see her, and the alleged theft of her dog would be suspect.

The petitioner denied the most serious charges at the hearing, admitting 2 minor ones with plausible explanation. He argues that confrontation and cross-examination of his accuser and other witnesses would reveal that he was the victim of a scorned woman's fury.

Resolution of such contradictions without confrontation of accuser by accused would appear wholly in contravention of both the spirit and letter of Morrissey v. Brewer, Supra, and especially here where it was denied at both the preliminary and full revocation hearings. Nor can I find that meaningful confrontation was provided at the preliminary hearing in Florida relative to the charge of stealing his girl friend's dog--a charge eventually dismissed for failure to prosecute. That hearing preceded the parole revocation process and could hardly be considered the confrontation envisioned by the Supreme Court in Morrissey. This Court will follow the reasoning of the First Department in People ex rel. Gambino v. Warden, 43 A.D.2d 400, 352 N.Y.S.2d 200,...